At least in recent memory, the GOP’s affinity for the Constitution has been a cyclical, uncertain beast, waxing and waning depending on who’s in power, and what’s up for debate. If we’re under a Republican President, and the issue is the war on terror, then it becomes all-too-clear that the Constitution, despite being drafted within living memory of an insurgency-based war fought on American soil, was never intended to apply strictly in wartime. Under a Democratic President, though, when not mere lives but money and taxes are up for debate – well, that’s another story entirely!
In cases like the latter, as my estimable co-blogger reported, GOP headliners like Michele Bachmann (R-MN) will demand that executive branch officials point out the precise Article, section, and clause of the Constitution justifying the legislative enactment from which they draw their authority. Yes, that’s right: Bachmann, a “law school” graduate, actually wonders by what authority Congress can constitutionally regulate interstate commerce. Hmm. It’s not a pretty sight.
Each Act of Congress shall contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that Act. The failure to comply with this section shall give rise to a point of order in either House of Congress. The availability of this point of order does not affect any other available relief.
Now, I’m no big city lawyer, and I certainly agree that Congress has an independent duty to obey the Constitution, but I fail to see how giving legislators the equivalent of a “nag screen” will deter unconstitutional lawmaking. Legislators should already be prepared to constitutionally justify proposed legislation and, if they aren’t, a point of order asking legislators to invent a justification on the spot hardly seems like the remedy Shadegg & co. imagine it to be (“Commerce Clause!” “Enforcement Clause!” etc. etc.). The problem Shadegg wants to address is an overbroad construction of enumerated powers – which his Bill is powerless to prevent – not a complete inability to cite authority on point.
Bottom line, the Enumerated Powers Act is just a PR stunt cobbled up as a way of reframing political to government financial policy as constitutional, while foisting on the public an unduly limited idea conception of Congress’ power. Yes, Congress is emphatically a body of “enumerated” powers – but, while enumerated, those powers are broadly phrased ((See, e.g., U.S. Const. Art. I, § 8, cl. 3 (“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…”))) and to be broadly construed ((“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof…” U.S. Const. Art. I, § 8, cl. 18.)) so as to make them meaningful. The Constitution is a complex document, of which the Tenth Amendment is but a small part. Don’t let the GOP pretend it’s the whole story.